Pretty much every week I meet with a couple who have been married previously, who want to be sure their will is up to date. Ensuring that a will and other important documents that you drafted years ago are current is a valuable exercise, one I recommend couples do regularly. (More on this below.)
But married couples who have children from a prior relationship need to look beyond their will to consider what is likely their most important asset: their home.
And that requires a close look at your deed.
If Your Home Goes Directly to Your Spouse
When most couples buy their home, their closing agent has them take ownership in what is known as “tenancy by the entireties.”
What this means is that if one person in the marriage passes away, that person’s portion of the property immediately transfers to the surviving spouse. No probate is necessary. Another benefit of this type of deed is that, if a judgment is entered in court against one of the spouses, it does not become a lien on the property.
That sounds fine until you realize that if the deceased spouse has children from a different relationship, their children may never see the money that ultimately results from the sale of the home.
Why? Because once the property passes to the living spouse, that person can do with it whatever they wish. If they turn around and change their will to leave all their assets to their own biological children (which unfortunately happens regularly, even if the spouse promised the partner he or she would not do that), the deceased spouse’s children will not inherit any of the homes when the other spouse dies.
Or, if the living spouse decides to sell the home while still alive, they can keep all of the profits for themselves, or choose to parcel out proceeds to their own children only (which, alas, is also something I regularly see).
Couples in This Situation Need a Different Deed
This is why I generally recommend to married couples who have children from a prior marriage that they take the title of their home as “tenants in common.” What tenants in commons mean is if one person dies, that person’s half goes directly to his probate heirs, not to the spouse. (If the property is homestead, under Florida law the surviving spouse can remain in the home as long as they want, regardless of what the deceased person’s heirs desire.)
If you are in this situation and do not own your home as tenancy by the entireties, your deed can be changed.
Of course, this type of deed means that when one spouse dies, that person’s portion of the home will need to go through probate. There are costs and time delays associated with the probate process.
The other negative of a tenant in a common deed is that you lose the rule that protects the home from a judgment against one of the spouses.
However, this is the easiest way a couple on their second (or third, or fourth…) marriage can be certain to protect the future assets of their own biological children.
How to Change Your Deed
If your deed currently lists tenancy by the entireties and you want to change it to tenants in common, this is something a real-estate lawyer can easily do.
The lawyer will create a new deed, typically within days. The property owners simply need to sign this new deed in front of two witnesses and a notary. They also need to pay the county minimal recording fees. This can be done even if you still have a mortgage on the property.
Other Estate-Planning Items You Should Double-Check
Your will and your deed are not the only items you should periodically check to be sure you’re up to date in your estate planning. Other documents you’ll want to review include your living will, healthcare power of attorney and, if appropriate, your power of attorney.
You’ll also want to be sure your beneficiary forms from your bank accounts, investments, and retirement plans are accurate, so the money in those accounts flows directly to your desired beneficiaries, without going through probate. Similarly, your life insurance beneficiary, if you have a policy, should accurately reflect your current wishes.
Consider How You Want to Die
Finally, while it’s hard to think about the end of your life, it is crucial to do so, especially if you are elderly or have a serious medical condition. Otherwise, your spouse or children will be put in the difficult situation of trying to figure out your needs.
These decisions go beyond whether you want to be on artificial life support, something the living will covers.
That’s why, in consultation with hospice experts, my firm created the free document My Last Emotional Wishes. This form does not replace a will or living will and is not a legally binding document. But it gives your family peace of mind that they’re acting as you would want them to.
Probate Attorney Coral Springs
You can download this free form at the bottom of the home page of my website.
Have the Law Office of Gary M. Landau by your side. The Law Office of Gary Landau is located in Coral Springs, Florida, and is rated 10 out of 10 by the legal website AVVO. For more information or free phone consultation, call 954-979-6566 or email us. Attorney Gary Landau personally returns all calls to him.
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